Protecting Lawyer-Client Confidentiality

The European Parliament is supporting moves which call for the protection of the confidentiality of lawyer-client communications.

It has adopted a draft resolution on the electronic mass surveillance of EU citizens which includes recommendations made by the CCBE (Councils of Bars and Law Societies of Europe) of which the Faculty is a member.

The Parliament regards lawyers as a vulnerable group when they are subjected to surveillance, particularly when confidential communications with clients are involved.

Iain Mitchell QC, who is chairman of the Surveillance Working Group of the CCBE, said that the organisation had lobbied on the issue of professional confidentiality and privilege and was content with the outcome.

The draft resolution stresses: “Mass surveillance severely undermines the professional confidentiality privilege of regulated professions including doctors, journalists and lawyers.”

It underlines in particular the rights of EU citizens to be protected against any surveillance of confidential communications with their lawyers which would violate the Charter of Fundamental Rights of the European Union, notably on the right of access to a lawyer.

It also stresses that a common definition of ‘national security’ is required for the EU and member states to ensure legal certainty and notes that the lack of a clear definition opens the door to abuses of fundamental rights and the rule of law by the executive and intelligence communities.

The resolution calls on the European Commission to present a communication on the confidential communication in professions with legal professional privilege by the end of next year at the latest.

The resolution takes note of the “action or lack of action” by the European Commission, other EU institutions and member states to follow up the recommendations set out by the Parliament in March 2014 on the electronic mass surveillance of EU citizens.

The CCBE will now liaise with the European Parliament to produce a response from the European Commission.

Iain Mitchell is also travelling to Tbilisi at the invitation of the Georgian Bar Association to speak at a conference on the “Institutional Guarantees of Legal Practice” where he will focus on the importance of legal professional privilege.

In December he will be in Brussels attending a meeting of the European Parliament’s Privacy Platform, contributing on behalf of the CCBE on the theme of: “A right to encryption versus a ban on encryption: on secure communications and law enforcement.”

Mr Mitchell will be taking part in a discussion by a panel consisting of academics and representatives of organisations closely involved with encryption, government policies, human rights and cybercrime